Cho-2014-China-2955 (Law No. 18, 2015)

Whether it constitutes a duplicate tax investigation

In a tax investigation, whether it constitutes a duplicate tax investigation prohibited from re-audit must have the reason that the investigation authority was abused. However, in light of the course of such a series of circumstances, etc., it is difficult for the defendant to evaluate that the period of tax investigation is extended or the prior notice

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

Incheon District Court-2015-Gu 52511 (Law No. 28, 2017.09)

NewOO JointOO

O Head of tax office

2017.20

2017.28

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Details of the disposition;

A. The Plaintiff, established on October 10, 190, reported the value-added tax of KRW 629,468,932 in total in accordance with Article 106-7(1) of the former Restriction of Special Taxation Act (amended by Act No. 111133, Dec. 31, 201; hereinafter “Special Taxation Act”) to a corporation that engages in taxi transport business under the Passenger Transport Service Act, and the value-added tax of KRW 106-7(1) from the first to the second half of 2011.

나. ▧▧광역시장은 2012. 6. 15. 원고에 대하여 2010년 7월부터 2011년 12월까지 사이의 택시부가가치세 경감세액 지급실태에 대한 점검을 실시한 결과, 원고가 부가가치세 경감세액을 여객자동차 운수사업법에 따른 일반택시 운수종사자(이하 '운수종사자'라 한다)에게 근로장려금수당 명목으로 지급할 때 조세특례제한법 제106조의7 제2항에 따라 위 수당이 부가가치세 경감세액임을 알리지 아니하였으므로 부정적 집행금액이라고 판단하였고, 위 점검결과를 2012. 8. 2. 피고에게 통보하였다.

C. From September 3, 2012 to September 21, 2012, the Defendant conducted a tax investigation with respect to the Plaintiff (from January 1, 2009 to December 31, 2011, subject to investigation tax item: corporate tax and value-added tax; hereinafter referred to as “first investigation”). The Defendant did not undergo a tax investigation notification procedure pursuant to the proviso to Article 81-7(1) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter referred to as “Framework Act”), and sent a notice of tax investigation to the Plaintiff on August 27, 2012.

D. On October 10, 201, the Defendant issued a notice of the result of tax investigation (hereinafter “the first notice”) to the Plaintiff on October 10, 2012, when the value-added tax reduced pursuant to Article 106-7 of the Restriction of Special Taxation Act, which was not used for the improvement of workers’ welfare or was not paid directly to the transport employees, and the value-added tax on the omission of sales during the first and second period of 201.

E. However, even after the completion of the above investigation period, the Defendant examined taxation data, such as the benefit ledger submitted by the Plaintiff, explanatory materials, etc. (hereinafter referred to as “the second investigation”), prepared a report on the completion of the investigation (revision), and issued a notice of the changed investigation results on December 14, 2012 (hereinafter referred to as “the second notice”).

F. Although the Plaintiff filed a request for pre-assessment review on the second notification on January 10, 2013, the Plaintiff was dismissed on March 8, 2013. On April 1, 2013, the Defendant notified the Plaintiff of KRW 37,531,630 for the first term portion of value-added tax in 2009, KRW 61,500,140 for the second term portion of year 2009, KRW 55,617,800 for the second term of year 2010, KRW 29,527,270 for the second term portion of year 2010, KRW 39,708,570 for the first term portion of year 201, and KRW 373,748,70 for the second term of year 2011.

G. On July 1, 2013, the Plaintiff filed an objection with the Director of the Central Regional Tax Office on the imposition of the value-added tax as above; on December 27, 2013, the first period of No. 1, 2009, second period of 2009, and first period of 2010, the Plaintiff decided not to additionally collect the abated value-added tax, but to revise the tax base and tax amount; but was subject to the decision of dismissal regarding the second period of 2, 2010, first period of 2011, and second period of 2011 (hereinafter “instant taxable period”). Accordingly, the Defendant revoked all the above imposition of value-added tax on the first period of No. 1, 2009, second period of 209, and first period of 2010.

H. On March 27, 2014, the Plaintiff filed a petition for a trial with the Tax Tribunal (Seoul High Court Decision 2014J2955) on the imposition of value-added tax in the instant taxable period (hereinafter “each of the instant dispositions”). However, on May 18, 2015, the Plaintiff received a ruling of dismissal on each of the instant dispositions.

[Ground of recognition] A without dispute, Gap 1-7 (including a branch number for which a branch number is included; hereinafter the same shall apply), Eul 1-2, 4-5, the purport of the entire pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the Plaintiff’s assertion

(1) procedural illegality such as double tax investigations

㈎ 금지되는 중복세무조사에 해당

The notice of the result of the Defendant’s tax investigation is an administrative disposition subject to appeal litigation, and the Defendant’s second investigation on the same tax item and the same period based on the taxation data already acquired and prepared at the time of the first investigation constitutes the act of conducting a duplicate tax investigation prohibited by Article 81-4(2) of the Framework Act on National Taxes. Therefore, each disposition of this case is an illegal disposition due to abuse of

㈏ 세무조사결과통지 수정 불가

The defendant concluded the first investigation and issued the second notification beyond the supplement of the first notification based on the already acquired data even after the notice of the results of the tax investigation was completed. In light of the fact that the Framework Act on National Taxes does not provide for the procedures to revise the notice of the results of the tax investigation, the second investigation and the second notification unfairly increased the tax amount in a voluntary manner without following the procedures prescribed by the Framework Act on National Taxes.

㈐ 세무조사 기간 연장사유 및 승인, 통지의 부존재

If the second investigation does not fall under a double tax investigation, it is at least the extension of the first investigation, and the defendant has no grounds for extending the period of investigation under Article 81-8(1) of the Framework Act on National Taxes, and the period of investigation has been extended at will without obtaining approval from the head of the tax office pursuant to Article 81-8(3) of the same Act, and the document notification under paragraph (6) of the same Article has not been made.

(2) Unfair collection of value-added tax reductions

The plaintiff paid the abated value-added tax under Article 106-7 of the Restriction of Special Taxation Act to the transport employee as the allowance for the labor encouragement. The above labor encouragement allowance is stipulated as the abated value-added tax according to the individual labor contract with the transport employee. Therefore, the plaintiff did not violate Article 106-7 (2) of the Restriction of Special Taxation Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether procedural violation such as double tax investigations is committed

㈎ 관련 법리

A tax investigation is a kind of administrative investigation for the realization of the State's right to impose taxes, and refers to any act of making inquiries to determine or correct the tax base and amount of national tax and inspecting or investigating books, documents and other articles, or ordering the submission thereof. In the case of a tax investigation for which the tax authority's right to ask questions to a taxpayer or a person who is deemed to have a transaction with the taxpayer (hereinafter referred to as "taxpayer, etc.") bears the legal obligation to allow the taxpayer to answer questions and undergo an inspection for the collection of the taxation data by the tax official. Meanwhile, a repeated tax investigation for the same tax item and taxable period may seriously infringe not only the taxpayer's freedom of business or legal stability, but also lead to the abuse of the authority to conduct a tax investigation. Thus, it is necessary to be prohibited except in exceptional

In light of the nature and effect of such tax investigation, the purport of prohibiting duplicate tax investigations, etc., where a tax official’s investigation practically affects taxpayers’ freedom of business by having taxpayers answer questions and undergo an inspection, etc., it shall be deemed a “tax investigation prohibited from re-audit” even if the instructions by the National Tax Service are excluded from the type of tax investigation. However, where it is deemed that all investigation conducted by the tax authority for the collection of taxation data or for the verification of accuracy of the details of the report constitutes a tax investigation prohibited from re-audit, the tax authority should always commence a regular tax investigation only in a case where the mere fact-finding alone is sufficient, and must respond to an indefinite tax investigation by taxpayers, etc., so it does not constitute a “tax investigation prohibited from re-audit” even if the taxpayer, etc. does not have any duty to answer or accept, and does not constitute a “tax investigation prohibited from re-audit”.

In addition, whether an investigation conducted by a tax official constitutes a "tax investigation prohibited by re-audit" shall be determined individually in specific cases by comprehensively taking into account the purpose and details of the investigation, the object and method of the investigation, the data obtained through the investigation, the scale and period of the investigation, etc. In addition, it is difficult to regard it as a "tax investigation prohibited by re-audit in principle where it is anticipated that a taxpayer, etc. can easily respond to the investigation, or there is no substantial impact on the taxpayer's freedom of business, etc., as it is for the purpose of determining or correcting the tax base and amount of tax, and it is difficult to determine it as a "tax investigation prohibited by re-audit" in cases where the investigation conducted by a tax official directly contact the taxpayer, etc. on a considerable period of time in the office, workplace, factory, or residence of the taxpayer, etc., and inspects and investigates books, documents, goods, etc. for a certain period of time, barring special circumstances (see Supreme Court Decision 201Du3684, Mar. 16, 2017).

On the other hand, in light of the above legal principles and the relevant laws, it is necessary to examine the nature of the act of tax investigation in determining whether it is a "tax investigation prohibited by re-audit" under Article 81-4 of the Framework Act on National Taxes, and whether the notice of the result of tax investigation is an administrative disposition subject to appeal litigation is not directly related to it.

㈏ 검토

In light of the relevant legal principles, considering the following circumstances, which can be acknowledged by comprehensively taking account of the testimony of △△△, the statement in B, B, 3-6-7 and the purport of the entire pleadings, it is reasonable to conclude that the second investigation is a correction of errors or omissions in the Plaintiff’s report and does not constitute a “tax investigation prohibited” even if it was a tax investigation. In addition, in this case where there are no circumstances such as the Defendant’s abuse of the right to investigate, it is difficult to conclude that there is a serious defect to the extent that the Defendant revoked each of the dispositions of this case solely on the ground that it was difficult for the Defendant to evaluate that the period of tax investigation was extended or omitted in advance notice

(1) The objects, circumstances, and materials acquired through the preliminary investigation.

▧▧광역시장이 2012. 8. 2. 피고에게 통보한 내역에 의하면 원고는 2010년 제2기에 22,561,154원, 2011년 제1기에 34,573,629원, 2011년 제2기에 30,824,711원을 부가가치세 경감세액임을 표시하지 아니한 채 부적정 지급한 것으로 되어 있다. 피고는 부가가치세 등의 탈루 혐의를 확인하는 1차 조사를 하는 과정에서 조사대상기간의 급여대장 제출을 요구하였다. 그런데 원고는 2009년과 2010년도와 관련해서 부정확한 자료를 제출하였고, 2011년도 급여대장은 제출하지 않았다. 피고는 일단 위 자료를 토대로 원고에 대하여 2009년분과 2010년분 부가가치세에 대하여 일응의 추징액을 산정하고, 2011년 예상 고지세액으로는 매출누락으로 인한 추징세액만을 기재하고 부가가치세 경감세액 미지급분(이하 '부당사용액'이라 한다)에 관한 추징세액은 기재하지 않았다(원고가 1차 조사 당시 피고 측에게 2011년 급여대장 및 추가 소명자료 등의 제출을 이유로 부과처분의 결정을 미루어 달라는 요청을 한 정황이 나타나 있다).

(2) Data acquired through a secondary survey and the details of the acquisition thereof.

On December 7, 2012, the Plaintiff seems to have finally submitted the benefit ledger from 2009 to 2011 (in 2009 and 2010, separate submission is made between regular workers and daily workers), and the benefit ledger in 2011.

In light of the contents of the first investigation result, the Plaintiff asserted that the Defendant had already received the aforementioned final text during the period from 2009 to 2011. However, it is difficult to accept the Plaintiff’s assertion in light of the following: (a) the Plaintiff’s vice president submitted the benefit ledger from 209 to 2011, to the Defendant on December 7, 201, which was the day before the second investigation, to the effect that there was no other benefit ledger except the above benefit ledger (in addition, 12 copies of each benefit ledger for the pertinent period were attached to the materials attached thereto). In light of the fact that each of the instant dispositions appears to have been corrected and notified immediately after the submission of the verification procedure based on the final text of the benefit ledger corresponding to the taxable period of the instant case, etc.

(3) Objects and methods of the secondary investigation, results of investigation, etc.

As seen earlier, the Defendant appears to have suspended the judgment of the first and second instances in 2011 on the wind for which the Plaintiff submitted the reliable taxation data, and on the other hand, on the second and second instances in 2010, even though the first investigation was conducted on the amount of unfair use at the time of the second investigation, it appears to have reduced part of the amount of unfair use through an analysis (re-examination) of the evidence submitted by the Plaintiff at the time of the second investigation.

이러한 사정에 비추어 보면, 피고는 1차 조사 이후에 원고가 추가로 제출한 위 급여대장과 노사합의서 및 ▧▧광역시장의 회신서를 수령한 이후 원고 측 관계자를 접촉하여 추가로 현장 조사 또는 질문조사를 하거나 장부‧서류‧물건 등을 검사하지는 않고, 단지 1차 조사 당시 제출된 자료들과 2차 조사에 새롭게 제출된 자료에 대한 단기간의 분석을 통하여 신고사항의 적정여부를 검증한 후에 원고 측 사정으로 제대로 분석이 이루어지지 않은 부당사용액에 관하여 1차 조사에서의 오류나 누락된 부분을 다시 경정한 것으로 보인다.

(4) Evaluation of the secondary investigation.

In light of the aforementioned series of developments and research methods, etc. of the second investigation, there is room to view that the second investigation was conducted to give the Plaintiff an opportunity to voluntarily correct himself due to the reasons on the part of the Plaintiff (the partial reduction was made according to the Plaintiff’s vindication). In fact, the Defendant did not have imposed several obligations on the Plaintiff by visiting the Plaintiff’s workplace and investigating account books, documents, articles, etc. In addition, the Defendant appears to have conducted the second investigation in order to discover and correct errors in the reported part through the fact-finding or analysis on the materials, materials, etc. submitted later due to the Plaintiff’s reasons on the part of the Plaintiff. The Defendant appears to have conducted the second investigation in order to discover and correct errors in the existing part through the fact-finding or analysis on the materials, materials, etc. submitted later due to the Plaintiff’s reasons, and do not seem to have caused a significant

If there is any error or omission in the details of the return of value-added tax filed by the taxpayer corporation, the tax authority can rectify the increase (Article 57 (1) 2 and (3) of the Value-Added Tax Act). Ultimately, the second investigation of this case is difficult to evaluate at least the "tax investigation prohibited from duplicate investigation."

(2) Whether requirements for additional collection of value-added tax are satisfied

Value-added Tax Reduction: Whether the amount of value-added tax has been paid in cash to the transport employees

According to the overall purport of the statements and arguments by Gap 1 and 4, the plaintiff appears to have paid part of the value-added tax reduction tax during the taxable period of this case under the labor-management agreement dated June 20, 2010 without indicating that it is the amount subject to the reduction of the value-added tax at the time of paying the salary as the allowance for labor encouragement. However, even if all the evidence submitted by the plaintiff are collected, it is insufficient to recognize that the defendant was actually paid in cash through the analysis of the wage ledger, etc. submitted by the plaintiff while rendering each disposition of this case, and that the amount deemed to have been deducted from the tax base (total amount of KRW 21,741,239) and the amount deemed to have been paid individually after the return of value-added tax (total amount of KRW 214,761,406) exceeds the amount deemed to have been paid in advance in accordance with the labor-management agreement as above, and there is no other obvious evidence to acknowledge it otherwise.

We cannot accept this part of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Related Acts and subordinate statutes

director of the former Restriction of Special Taxation Act (amended by Act No. 10285, May 14, 2010)

Article 106-7 (Reduction of Value-Added Tax Amount for General Taxi Drivers)

(1) 90/100 of the amount of the payable value-added tax shall be reduced for general taxi transport business entities under the Passenger Transport Service Act by the taxable period ending on or before December 31, 2011.

(2) The amount of reduced tax under paragraph (1) shall be used to improve the treatment and welfare of general taxi drivers under the Passenger Transport Service Act as prescribed by the Minister of Land, Transport and Maritime Affairs.

(3) Where the Minister of Land, Transport and Maritime Affairs confirms that a general taxi transport business entity under the Passenger Transport Service Act has failed to use the amount reduced pursuant to paragraph (1) within six months from the expiration of the reporting and payment deadline of value-added tax, he/she shall immediately notify the Commissioner of the National Tax Service or the head of the competent tax office, who shall in turn notify the Commissioner of the National Tax Service of such fact,

1. The amount equivalent to the reduced tax amount not used for improving the treatment and welfare of general taxi drivers under the Passenger Transport Service Act;

2. Amount equivalent to the interest on the amount equivalent to the reduced tax amount calculated by the following formula:

The amount equivalent to the interest = The amount equivalent to the abated tax amount under subparagraph 1 ¡¿ Period from the day following the end of a deadline for filing a return and payment of value-added tax reduced pursuant to paragraph (1) to the date of notifying the amount of additional tax ¡¿

3. The additional tax amount equivalent to 20/100 of the amount equivalent to the abated tax amount under subparagraph 1.

[Specialized Amendment, January 1, 2010]

(1) The former Restriction of Special Taxation Act (amended by Act No. 11133 on December 31, 201, and enforced January 1, 2012)

Article 106-7 (Reduction of Value-Added Tax Amount for General Taxi Drivers)

(1) 90/100 of the amount of value-added tax payable shall be reduced for a general taxi transport business entity under the Passenger Transport Service Act (hereafter in this Article, referred to as "general taxi transport business entity") up to the taxable period ending on or before December 31, 201.

(2) A general taxi transport business entity shall pay the full amount of abated tax under paragraph (1) to a general taxi transport business entity under the Passenger Transport Service Act (hereafter referred to as "general taxi transport business entity" in this Article) within one month from the end of the payment deadline for the final return of value-added tax, as prescribed by the Minister of Land, Transport and Maritime Affairs. In such cases, he/she shall notify the general taxi transport business entity that the cash paid is the amount of abated value-added tax. <

(3) Where the Minister of Land, Transport and Maritime Affairs confirms that a general taxi transport business entity has failed to pay the amount reduced pursuant to paragraph (2) within one month from the end of payment deadline for the final return of value-added tax reduced pursuant to paragraph (1), he/she shall immediately notify the Commissioner of the National Tax Service or the head of the competent tax office having jurisdiction over the general taxi transport business entity, and the notified Commissioner of the National Tax Service or the head of the competent

1. The amount equivalent to the amount of reduced tax not paid to general taxi drivers;

2. Amount equivalent to the interest on the amount equivalent to the reduced tax amount calculated by the following formula:

The amount equivalent to the interest = The amount equivalent to the abated tax amount under subparagraph 1 ¡¿ Period from the day following the end of a deadline for filing a return and payment of value-added tax reduced pursuant to paragraph (1) to the date of notifying the amount of additional tax ¡¿

3. The additional tax amount equivalent to 20/100 of the amount equivalent to the abated tax amount under subparagraph 1.

[Specialized Amendment, January 1, 2010]

(1) The former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013)

Article 81-2 (Establishment and Delivery of Taxpayers' Right Charter)

(1) The Commissioner of the National Tax Service shall establish and publicly notify the taxpayers' right charter containing the matters prescribed in Articles 81-3 through 81-16 and other matters concerning the protection of taxpayers' rights.

(2) A tax official shall deliver a document stating the details of the taxpayers' rights charter under paragraph (1) to taxpayers in any of the following cases:

1. Where he/she asks questions in order to determine or correct the tax base of national tax and the amount of tax, inspects or investigates the relevant account books, documents or other articles or orders the submission thereof (including the investigation of tax offenses under the Procedure for the Punishment of Tax Offenses Act; hereafter in this Chapter, referred to as "tax investigation");

2. and 2. Deleted;

3. Where a business registration certificate is issued.

4. Other cases prescribed by Presidential Decree.

[Specialized Amendment, January 1, 2010]

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

(1) Any tax official shall conduct a tax investigation to the minimum extent necessary to realize proper and fair taxation and shall not abuse the right of tax investigation for any other purpose.

(2) Tax officials may not conduct reinvestigation for the same items of taxation and for the same taxable period, except in any of the following cases:

1. Where obvious evidence exists that prove a suspicion of tax evasion;

2. Where it is necessary to investigate a trading partner;

3. Where mistakes relating to two or more business years exist;

4. Where an investigation is conducted following the decision on necessary disposition pursuant to Article 65 (1) 3 (including cases applicable mutatis mutandis in Articles 66 (6) and 81);

5. Other cases similar to subparagraphs 1 through 4, which are prescribed by Presidential Decree.

[Specialized Amendment, January 1, 2010]

Article 81-8 (Period of Tax Investigation)

(1) A tax official shall ensure that the period of tax investigation is at least the period in consideration of the items of investigation, type, scale, difficulty, etc. of the investigation: Provided, That in any of the following cases, the period of tax investigation may be extended:

The provisions of Article 10 (1) shall apply mutatis mutandis.

1. Where it is evident that a taxpayer has evaded an investigation, such as hiding books, documents, etc. or delaying or refusing the submission thereof;

2. Where it is necessary to investigate the customer, conduct on-site verification of the customer, or conduct on-site verification;

3. Where a suspicion of tax evasion is detected or the type of the investigation is converted into the case of a tax offense pursuant to Article 1 of the Procedure for the Punishment of Tax Evaders Act in the course of such investigation;

4. Where the investigation is suspended due to natural disasters or labor disputes;

5. Other cases similar to subparagraphs 1 through 4, which constitute grounds prescribed by Presidential Decree.

(2) Where a tax official determines the period of tax investigation pursuant to paragraph (1), the period of tax investigation for taxpayers whose annual revenue or transfer amount is less than 10 billion won in the taxable period with the largest annual revenue or transfer amount during the taxable period subject to investigation shall not exceed 20 days.

(3) Where a tax investigation with a period fixed under paragraph (2) is extended for the first time pursuant to the proviso to paragraph (1), approval from the head of the competent tax office shall be obtained, and where such period is extended twice, it may be extended within 20 days, respectively after obtaining approval from the head of the competent higher tax office: Provided, That it shall not be subject to restrictions on the period of tax investigation under paragraph (2) and the extended period of tax investigation under the main sentence of this paragraph in cases prescribed by Presidential Decree, such as where a tracking investigation on a tax invoice is necessary.

(4) A tax official may suspend a tax investigation where it is impracticable to conduct a tax investigation due to the grounds prescribed by Presidential Decree, such as delay in submitting data by a taxpayer. In such cases, the period of suspension shall not be included in the period of a tax investigation and the extended period of a tax investigation under paragraphs (1) through (3).

(5) A tax official shall, when he/she suspends a tax investigation under paragraph (4), immediately resume the tax investigation when the grounds for suspension cease to exist: Provided, That the tax investigation may resume when it is necessary to do so urgently, such as securing tax claims, etc.

(6) Where a tax official extends the tax investigation period pursuant to the proviso to paragraph (1), he/she shall notify the taxpayer of the grounds therefor and the period thereof in writing, and where the tax investigation is suspended or resumed pursuant to paragraphs (4) and (5), he/she shall notify the taxpayer of the grounds therefor in writing.

[This Article Newly Inserted by Act No. 790, Dec. 30, 200>

Article 81-8 of the previous Act shall be moved to Article 81-10.

Article 81-12 (Notice on Result of Tax Investigation)

When a tax official completes a tax investigation, he/she shall notify the taxpayer of the results of such investigation in writing: Provided, That this shall not apply to cases prescribed by Presidential Decree, such as the closure of business.

[Specialized Amendment.

(1) The former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 24366, Feb. 15, 2013)

Article 63-2 (Prohibition of Overlapping Investigation)

"Cases prescribed by Presidential Decree" in Article 81-4 (2) 5 of the Act means any of the following cases:

1. If a general investigation is undertaken against a person suspected of disturbing the economic order through speculative investment in real estate, hoarding and hoarding, undertaking transactions without authentic documentation, etc., leading to evasion of taxes;

2. Where a reinvestigation for the handling of all kinds of assessment data, or a confirmation investigation for determination of the national tax refund is conducted;

3. Where re-revision is made without conducting on-site investigation for tax disposition pursuant to Articles 81-5 and 81-12 of the Act.

[Specialized Amendment : February 18, 2010]